Monday, April 28, 2008

"Lawyers Fear Monitoring..."

...in Cases of Terrorism" is the headline in today's New York Times. It goes on to state that:

Thomas Nelson, an Oregon lawyer, has lived in a state of perpetual jet lag for the last two years. Every few weeks, he boards a plane in Portland and flies to the Middle East to meet with a high-profile Saudi client who cannot enter the United States because he faces charges here of financing terrorism.

Mr. Nelson says he does not dare to phone this client or send him e-mail messages because of what many prominent criminal defense lawyers say is a well-founded fear that all of their contacts are being monitored by the United States government...

Across the country, and especially here in Oregon, it seems, lawyers who represent suspects in terrorism-related investigations complain that their ability to do their jobs is being hindered by the suspicion that the government is listening in, using the eavesdropping authority it obtained — or granted itself — after the Sept. 11 terrorist attacks.

Steven T. Wax, a Portland lawyer involved in several terrorism cases, said he has told clients to assume that everything they say to him is being secretly monitored. Mr. Wax said he “self-censors” his e-mail messages, even to other lawyers and friends. The situation, he said, has elements of “Kafka and ‘Alice in Wonderland.’ ”

I've written before about Oregon attorneys who fear that their client communications are being intercepted. And we all remember Gerry Spence's representation and eventual $2 mil. settlement in the Brandon Mayfield case, a lawyer who also lives in Oregon. Does the government have something against Oregon lawyers or just criminal defense lawyers in general? Well, judge for yourself, as the NYT article continues:

The Justice Department does not deny that the government has monitored phone calls and e-mail exchanges between lawyers and their clients as part of its terrorism investigations in the United States and overseas.

But in cautiously worded court statements, the [Justice] department says that if there has been surveillance of lawyers involved in terrorism cases, it has been handled in strict accordance with federal law and with the Constitution’s promise of a criminal defendant’s right to counsel.

In other words, "don't you worry your pretty little heads over whether we're eavesdropping on lawyer's privileged communications with their clients. And we're not saying we did, but if we did we followed the law."

I wonder how many people Monica Goodling had to fire or how many hours of overtime John Yoo had to work to get this particular interpretation of the law approved? Don't worry though, even if they are breaking the law, they're not doing it very often and are ensuring that it doesn't affect the client's in court. "We don't torture," in other words:

Two senior Justice Department officials, speaking on the condition of anonymity because the department has not authorized them to discuss the issue with reporters, said they knew of only a handful of terrorism cases since the Sept. 11 attacks in which the government might have monitored lawyer-client conversations. They said they understood that the intercepted conversations were not shared with front-line prosecutors in an effort to be certain that there was no violation of attorney-client privilege.

And...

While the Bush administration insists that the warrantless wiretapping program has ended, Mr. Belew and other lawyers say they are concerned that the government has found another way of monitoring lawyer-client conversations, perhaps through the use of secret warrants obtained through the Foreign Intelligence Surveillance Court, a special court used in national security cases. The earlier N.S.A. program bypassed the surveillance court.

That's the same court that approved the searches of Brandon Mayfield's home and which claimed that Mayfield's fingerprints matched ones found at the scene of the Madrid train bombings. As David Fiege wrote in Slate:

Mayfield, a 37-year-old lawyer, ex military officer, and convert to Islam, was jailed for two weeks after the FBI discovered his fingerprint on a bag of detonators recovered after the deadly Madrid bombing that killed 191 people in March. Mayfield, it was also quickly disclosed, represented a defendant in a child custody case who was linked to terrorism. After matching the print and reviewing the evidence, special agent Richard Werder swore out an affidavit and used it to get a material-witness warrant. Mayfield was quickly arrested and sent to jail. More quick and aggressive police work in a terrorism case, keeping the homeland secure.

Except for the part about how the fingerprint wasn't Mayfield's at all.

At least I won't have to worry about being appointed to one of these cases. You see,

Lawyers who agree to defend terrorism suspects in cases involving classified information are required to undergo background checks that can include an F.B.I. review of their financial and medical records, including records of psychiatric care.

"So," as Carl the groundskeeper once said, "I got that going for me, which is nice."

About Me

I am a criminal defense lawyer in Omaha and these are my thoughts on law, politics and art. Disagree with me? Am I dead wrong? Have your own two cents to add? Leave a comment and let's discuss it. Thanks for stopping by.